• by Wendy Davis  @wendyndavis, July 19, 2013

Online video company Aereo says the new copyright lawsuit filed against it by Hearst in Boston should be transferred to New York, where the startup has been battling the major TV broadcasters since last year.

“If Hearst is permitted to proceed with this action here, it will result in gross inefficiencies and it will be contrary to the interests of justice,” Aereo argues in court papers filed this week with the U.S. District Court in Boston. The company adds that transferring the matter to the Southern District of New York is appropriate, given that the lawsuit “involves the same issues that court has already spent months vetting, managing and determining.”

Hearst sued Aereo earlier this month, alleging that the Barry Diller-backed company is a “free-rider” that infringes copyright by streaming over-the-air TV programs to tablets and smartphones. Aereo charges $8 a month for the service, which also allows subscribers to “record” TV shows for later viewing. The company has operated in New York since last year, and rolled out in Boston this May.

Hearst, which owns the ABC affiliate WCVB in Boston, is seeking an injunction prohibiting Aereo from continuing to operate in Massachusetts.

So far, Aereo is prevailing in similar lawsuits in New York. Last year, U.S. District Court Judge Alison Nathan refused to grant the TV broadcasters' request for an injunction shutting down Aereo. The 2nd Circuit Court of Appeals upheld that decision.

The judges said in those cases that Aereo's technology doesn't appear to infringe copyright -- which is a strong indication that TV networks' lawsuits will be dismissed in New York. The rulings also give Aereo a strong reason to want the new lawsuit by Hearst to be transferred to New York.

The company argues in its legal papers that sending the lawsuit to New York will “avoid the miscarriage of justice that would occur if broadcasters are allowed to use the legal system to wage a multi-front war of attrition against a small company rather than move these cases properly toward resolution.”

Aereo points out that Hearst won't be harmed by the transfer, given that it's based in New York. “Hearst will not be denied its day in court, but it will be prevented from using the legal system simply to try to achieve an inconsistent result, or to burden Aereo out of existence.”

Aereo contends that its system is legal due to its architecture, which relies on thousands of dime-size antennas to capture over-the-air broadcasts. After doing so, Aereo streams shows to users on an antenna-to-user basis. The networks argue that Aereo's streams are public performances, which can only be authorized by a copyright holder. But Aereo counters that its streams are private, because they are made on an antenna-to-user basis.

Even though Aereo so far is winning in New York, the law surrounding this type of technology is in flux. Last year, a trial judge in California sided with the TV networks in a similar lawsuit against an Aereo rival. In that case, U.S. District Court Judge George Wu granted the TV broadcasters an injunction preventing the Aereo competitor FilmOn X (previously called Aereokiller) from operating. FilmOn X is appealing that ruling to the 9th Circuit Court of Appeals.

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